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Home My WebLink About19. 22-150 APRIL 12, 2022 22-150 ORDINANCE FIRST READING (CARRIED______ LOST_______ LAID OVER_______ WITHDRAWN_______) PURPOSE: AMEND SECTION 12-10(A)(5)(3) AND CREATE SECTION 12- 10(A)(5)(4) OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING TO BID PROTESTS INITIATED BY: CITY ADMINISTRATION A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING SECTION 12- 10(A)(5)(3) AND CREATING SECTION 12-10(A)(5)(4) OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING TO BID PROTESTS WHEREAS, it is beneficial for the City of Oshkosh to establish a procedure for formal protests to bid specifications and awards to allow interested parties to bring questions and protests to the attention of the City and to resolve such issues prior to bid awards; and WHEREAS, staff has reviewed current procedures and recommends updating the municipal code provisions related to bid protests. NOW, THEREFORE, the Common Council of the City of Oshkosh do ordain as follows: SECTION 1. That Section 12-10(A)(5)(3) of the Oshkosh Municipal Code pertaining to public nuisance is hereby repealed and recreated to read as follows: 3. Protest. Protests to any sealed bid or bid award recommended by the Purchasing Authority or his or her designee may be made by any bidder as listed in subsection (1) and (2) below. Requests for Quotations and Request for Proposals are not bids and protest procedures do not apply. (1) Bid Specification Protest. Specifications that contain a term, condition or provision which prevents a vendor from bidding or are alleged to be restrictive relative to the market and/or the service requirements of the City can be appealed by filing a written protest with the City of Oshkosh APRIL 12, 2022 22-150 ORDINANCE FIRST READING CONT’D Purchasing Authority at least five (5) business days prior to bid opening. The protest shall be in writing and state the reason for it. The Purchasing Authority or his or her designee shall review protests and, if modifications are necessary, an addenda containing the changes shall be sent to each bidder and the bid opening date may be extended. If modification is rejected, the protestor shall be notified. The decision of the General Purchasing Authority or his or her designee is final. (2) Bid Award Protest. Protests concerning irregularities on sealed bid opening procedures, or compliance by bidders with bid documents, must be received by the Purchasing Authority within seventy-two (72) hours after time of bid opening. A protest shall be in writing and state the reason for it. The Purchasing Authority or his or her designee shall review the protest and notify the protestor of a decision in writing within five business (5) days. No contract shall be awarded while a protest is pending, unless this action will cause undue harm to the City of Oshkosh. A protest which is untimely, fails to state the reason for it or made prior to the bid opening is invalid. The decision of the General Purchasing Authority or his or her designee may be appealed to the City Manager or his or her designee within seventy-two (72 hours) of the Purchasing Authority’s notification of modification rejection to the protestor. The decision of the City Manager or his or her designee is final. (3) Filing and Notification Requirements. Notification under this paragraph shall mean notification in writing. Documents filed for protests and Notification may be sent via United States mail in a manner which provides notification of the date of delivery, sent via facsimile transmission or email to the email address listed in the bid documents for the City or to the email address of the protestor as identified within the protest document. Notification shall be complete upon date of delivery of mail or date of transmission for facsimile or email service. SECTION 2. That Section 12-10(A)(5)(4) of the Oshkosh Municipal Code pertaining to public nuisance is hereby created to read as follows: APRIL 12, 2022 22-150 ORDINANCE FIRST READING CONT’D 4. Protest: FTA funded procurements. For any protest related to a Federal Transportation Administration (FTA) funded procurement it is the responsibility of the local contract administrator to keep the FTA informed and updated on the status of the protest. Chapter VII, Sec. 1.b. of the FTA Circular 4220.1 F addresses protests where federal funds are involved. The FTA will only review protests regarding matters that are primarily of Federal concern. SECTION 3. This ordinance shall be in full force and effect from and after its passage, and publication. SECTION 4. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #22-____ on April 26, 2022, AMEND SECTION 12-10(A)(5)(3) AND CREATE SECTION 12-10(A)(5)(4) OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING TO BID PROTESTS (A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING SECTION 12-10(A)(5)(3) AND CREATING SECTION 12- 10(A)(5)(4) OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING TO BID PROTESTS). The ordinance updates and amends language in Section 12-10 of the Oshkosh Municipal Code pertaining to bid protests, including processes and timelines for protests related to bid specification requirements and bid awards. The ordinance also clarifies the limitations of Federal Transportation Administration (FTA) review in matters subject to FTA review. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City’s website at www.ci.oshkosh.wi.us. Clerk’s phone: 920/236-5011. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.ci.oshkosh.wi.us TO: Honorable Mayor and Members of the Common Council FROM: Jon G. Urben, General Services Manager DATE: March 31, 2022 RE: Amend Section 12-10(A)(5)(3) and Create Section 12-10(A)(5)(4) of the City of Oshkosh Municipal Code Pertaining to Bid Protests BACKGROUND Chapter 12 of the City of Oshkosh’s Municipal Code addresses purchasing provisions and procedures. The Purchasing Office has requested Council approve two proposed changes to Section 12-10 to clarify how interested parties may bring forward questions or protests to bid specifications or awards to the attention of the City and to resolve such issues prior to bid awards. ANALYSIS Specifically, the two proposed changes are as follows: 12-10(A)(5)(3) - The current language outlines the process by which an interested party may protest the award of a bid via a detailed statement in writing of the grounds for the protest. The language notes the award of the contract will be temporarily suspended unless the action will cause undue harm to the City of Oshkosh. The language notes the Purchasing Authority shall review and issue a determination upon the protest. The proposed amendment expands the protest process between bid specifications (protests concerning specifications that contain a term, condition or provision which prevents a vendor from bidding or alleged to be restrictive relative to the market and/or service requirements of the City) and bid awards (protests concerning irregularities on sealed bid opening procedures, or compliance by bidders with bid documents). Additionally, the proposed amendment clarifies the filing timelines for protests, the final review determination authority, appeal options and the filing and notification requirements. 12-10(A)(5)(4) – The proposed new language would address protests related to a Federal Transportation Administration (FTA) funded procurement. The new language clarifies that the FTA will only review protests regarding matters that are primarily of Federal concern. FISCAL IMPACT There is no anticipated fiscal impact to this action. RECOMMENDATION Staff recommends that the Council amend Section 12-10(A)(5)(3) and create Section 12- 10(A)(5)(4) of the City of Oshkosh Municipal Code pertaining to bid protests. Respectfully Submitted, Approved: Jon G. Urben, General Services Manager Mark A. Rohloff, City Manager